The Extradition Issue

“I don’t believe that any guerrilla is going to turn in his weapon only to go and die in a U.S. jail,” Colombian President Juan Manuel Santos said in early March. “It will be up to me to propose to the U.S. authorities some solution to this issue, which is complex and difficult, but has to be resolved.”

President Santos has much to discuss. Outstanding requests to extradite FARC guerrilla leaders to the United States could stand in the way of a final peace accord.

We have never seen a full list of U.S. courts’ indictments of FARC leaders (some of them may still be sealed), nor have we ever spoken to a U.S. official who could cite an exact number of outstanding extradition requests. But the following indictments are in the public record, and the number is large: they involve at least 60 living, at-large FARC members.

Six were indicted in 2001 for the 1999 killing of three U.S. indigenous rights activists in Arauca. (At least one of these six is now dead.)

Three were indicted in 2002 for narcotics and for kidnapping two U.S. oil workers in Venezuela. (At least two of these three are now dead.)

One was indicted in 2002 for the 1998 kidnapping of four U.S. citizen birdwatchers. (This individual, Henry Castellanos alias “Romaña,” is now a FARC negotiator in Havana.)

Two were indicted in 2004 for a 2003 grenade attack on a Bogotá bar, which injured five U.S. citizen customers.

Fifty were indicted in 2006 to face narcotics charges. (Several—we don’t know how many—are now dead, or captured and extradited. Some are on the guerrilla negotiating team in Havana.) This mass indictment was made possible by the USA PATRIOT Improvement and Reauthorization Act of 2005, which established the federal crime of “narco-terrorism,” or trafficking drugs to fund terrorist activity. This change in the law now applies worldwide: U.S. officials no longer need to prove that an individual intended to traffic drugs to the United States.

Eighteen were indicted in 2010 for their role in holding three U.S. defense contractors hostage between 2003 and 2008, and murdering their plane’s U.S. citizen pilot. (At least one of them, Dutch-born Tanja Nijmeijer, is part of the FARC delegation in Havana. Some others have been captured and extradited.)

U.S. authorities have also sought to extradite leaders of Colombia’s pro-government paramilitary groups to face narcotrafficking charges. In May 2008, then-President Álvaro Uribe extradited 14 of them at once, although all were participating in a negotiated demobilization and transitional justice process. As of February 2010, 30 ex-paramiltaries had been extradited to the United States.

FARC leaders have made clear that they will not let that happen to them. They will not agree to demobilize without a solid guarantee that the Colombian government will not extradite them to the United States for crimes committed before the signing of a peace accord.

The U.S. government cannot offer this guarantee. Once extradition requests are issued, it is almost impossible to call them back. The indictments listed above come from grand juries, presided by judges, and the U.S. government’s executive branch cannot interfere in the actions of the judicial branch. (While the President has the constitutional power to pardon individuals before a case goes to trial—as President Gerald Ford did for Richard Nixon after Watergate—such pre-trial pardons are exceedingly rare.)

The prosecutors in these cases may technically be part of the executive branch, working for the President, but they have wide-ranging independence to avoid any appearance that their work is politicized. (Witness the political firestorm that raged in 2007 when the Bush administration sought to fire and replace several U.S. attorneys.) Their superiors cannot force them to drop their cases for the good of “peace in Colombia.”

Extradition requests are issued by the Department of Justice Office of International Affairs. This Office’s mandate doesn’t include bringing peace to Colombia or achieving general U.S. foreign policy objectives. Its job is to bring perpetrators of crimes to justice. So these indictments and extradition requests aren’t going anywhere.

Within these constraints, it’s up to another part of the U.S. government—the Department of State, and if necessary the President—to decide whether a country’s non-fulfillment of an extradition request affects its relations with the United States.

Often, when U.S. diplomats consider the larger context, non-fulfillment of extradition requests has no effect at all on the bilateral relationship. This was the case when Colombia’s Supreme Court held up the extradition of paramilitary leader Daniel Rendón alias “Don Mario” in 2010. Nor did the U.S.-Colombia relationship suffer in 2011, when the Santos government extradited wanted Venezuelan drug trafficker Walid Makled to his home country—with which President Santos was seeking to repair troubled relations—instead of to the United States.

Similarly, the United States has an interest in Colombia completing a successful peace process that demobilizes the FARC. This interest is likely to outweigh the U.S. government’s desire to bring several dozen individuals to justice—as long as they truly cease to engage in illegal activity after signing a peace accord.

For that reason, we have not heard any expression of U.S. discontent this month over Colombia’s decisions not to extradite demobilized paramilitary leader “Julian Bolívar” and captured FARC leader “El Cura” (brother of a top FARC negotiator in Havana). Colombia’s Supreme Court had approved both men’s extraditions to the United States, but the Santos administration has put them on hold. “Bolívar” is said to have complied with his commitments to confess crimes and make amends to victims upon demobilization, and “El Cura” may remain in Colombia pending the outcome of the peace talks in Havana.

Since the peace process began, U.S. diplomats’ message has been consistent. Though they will consider each individual’s case separately, they do not intend to endanger the peace process by calling on Colombia to extradite former FARC members who have truly abandoned illegal activity and are fully contributing to peace. However, Washington may more forcefully demand extradition if there is evidence that a former FARC member is continuing to traffic drugs or to generate violence, or perhaps even if that ex-guerrilla is failing to fulfill his own peace accord commitments, like making amends for past human rights abuses.

This may not be enough for some U.S. policymakers. In a February 26 letter, Sen. Marco Rubio (R-Florida), the new chairman of the Senate Foreign Relations Western Hemisphere Subcommittee, urged the new U.S. special envoy, Bernard Aronson, to “[r]eaffirm that the United States will continue to seek access to individuals who are wanted to stand trial in the United States for violations of United States law.”

It is not clear yet whether extradition hardliners like Rubio have the numbers or the motivation to force the FARC extradition issue, or how they might do so. They might simply complain loudly about Colombian non-fulfillment of extradition orders, or they might go further and try to condition post-conflict U.S. aid on extradition of FARC leaders. As such a condition would be a deal-breaker for the peace process, it would be unlikely to succeed in the face of opposition from both the U.S. executive branch and the Colombian government.

Still, even if they’re in a file drawer somewhere deep in the federal bureaucracy, those indictments and extradition requests will always be hanging over demobilized FARC members, and there is very little that the U.S. legal system can do to make them go away.

When FARC negotiators make non-extradition demands, then, they must seek them from the Colombian government side. To secure their demobilization, government negotiators will have to guarantee that ex-guerrillas will not be extradited for past illegal activity. This guarantee will have to extend to future Colombian governments. It will have to address future illegal activity, with safeguards to avoid a scenario in which a future Colombian president with a vendetta against the now-demobilized FARC comes up with a trumped-up reason to put its wanted leaders on a one-way flight to the United States.

As President Santos said, the FARC will not sign a peace deal without these firm guarantees from the Colombian government. From the United States, they will at least want acquiescence and silence about non-extradition, as long as wanted ex-FARC members are truly honoring their peace process commitments. But even with that acquiescence, these wanted ex-FARC members will probably never be able to travel to the United States, or to third countries that have extradition treaties with the United States and implement them regularly.

A note on “Simón Trinidad”

When the subject of FARC extraditions comes up, it often turns to a FARC leader who was extradited to the United States back in 2004. Ricardo Palmera, alias “Simón Trinidad,” is serving a 60-year term for his role in the 2003–2008 kidnapping of three U.S. defense contractors. (Trinidad’s role in this was tangential; he was neither a captor nor a jailer, but he was likely involved in the FARC’s efforts to seek a prisoner exchange involving the U.S. captives.)

Since the Havana talks began in 2012, FARC negotiators have repeatedly demanded Simón Trinidad’s release from U.S. custody. They want Trinidad—one of very few FARC leaders from an elite background, considered one of the group’s more politically minded leaders—to be a member of their negotiating team. But Trinidad now resides in the “Supermax” federal prison carved out of a mountain in Florence, Colorado, a facility that holds notorious figures like “Unabomber” Ted Kaczynski, 9/11 conspirator Zacarias Moussaoui, “shoe bomber” Richard Reid, Oklahoma City bomber Terry Nichols, and Mexican Gulf Cartel leader Osiel Cárdenas.

Still, despite the gravity of Trinidad’s crime and sentence, no U.S. official has categorically said “no” to releasing him, a step that would require President Obama to use his constitutional power to issue a pardon or a sentence commutation.

In a January interview with journalist Yamid Amat of the Bogotá daily El Tiempo, U.S. Ambassador Kevin Whitaker clearly did not say “no.”

Amat: The FARC insist on the liberation of guerrillas detained in your country…

Whitaker: First, it’s important to remember that the judicial branch is independent. Second, a person who has already been sentenced is in quite a different position, and third, we fully support the Colombian government in its efforts to reach a negotiated peace, and we don’t want to be an obstacle, we want to help.

It’s not totally inconceivable that, at some point, the U.S. government might accede to the FARC’s demand to release Simón Trinidad. But because Trinidad was found guilty of participating in the kidnapping of U.S. citizens, releasing him would carry a huge political cost. It could only happen under very strict conditions:

If the peace process is in such an advanced state that there is almost no chance that talks could break down. Any circumstance that might lead to Trinidad returning to Colombia’s jungles would be unacceptable.

If the Santos government requests his release in a way that shares the political cost that the Obama administration would have to pay. The request would have to be public and explicit.

The U.S. government might also demand a third condition: that the FARC make some concession in return, likely having to do with truth or reparations to the victims of the murders and kidnappings that triggered U.S. extradition requests.

Much remains to be worked out here. The extradition issue, in particular, needs more explanation and clarity from U.S. officials, who need to communicate to both sides in Havana what is, and is not, possible. The February 20 naming of a U.S. special envoy to the talks should ease these needed discussions.